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Judge shuts down WEC’s ballot ‘curing’ guidance

By M.D. Kittle

MADISON — In a big win for election integrity, a Waukesha County Judge on Wednesday issued a ruling confirming what should have been clear to the Wisconsin Elections Commission years ago: it’s not legal for local clerks to cure — or fill in information — on absentee ballot envelopes.

Judge Michael Aprahamian’s decision confirms that state law allows only the voter to complete or correct the ballot certificates.

“If the right to vote is to have any meaning at all, elections must be conducted according to law,”  Aprahamian said.

WEC’s unlawful guidance was a severe point of contention in the 2020 election, with “cured” ballot envelopes disputed by then President Donald Trump, who lost Wisconsin by less than 1 percent of the vote total.

The Republican Party of Waukesha County and three voters took WEC to court.

“This isn’t a case about counting votes,” said George Burnett, attorney for the country party, “this is a case about stopping the issuance of guidance that violates Wisconsin law.”

Attorneys for the Democratic Party have argued state election law doesn’t preclude local elections officials from adding important information to the absentee ballot envelope.

But Aprahamian said the law clearly spells out who is responsible for correcting the ballot, and that’s the voter.

“If a certificate is missing the address of a witness, the ballot may not be counted,” the law states. “If a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, the clerk may return the ballot to the elector, inside the sealed envelope when an envelope is received, together with a new envelope if necessary, whenever time permits the elector to correct the defect and return the ballot within the period authorized…”

In July, WEC flouted a legislative committee’s vote to suspend WEC’s emergency rule giving clerks the power to cure absentee ballot envelopes. The commission said it would continue to advise clerks to fill in or correct missing information, insisting similar 2016 guidance was still in effect.

Aprahamian said no can do, and ordered the commission to advise clerks within five days that they are not allowed to cure ballots. He issued a temporary restraining order against the commission.

Democrats say they will appeal.

“If our system of laws is to have any meaning, it must mean that laws are binding and control over the unsupported whims of unelected bureaucrats periodically tasked with enforcing them,” the judge said.

Empower Wisconsin | Sept. 8, 2022

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